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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 4th day of January 1999,
by and between Personnel Group of America, Inc., a Delaware corporation (the
"Company"), and Xxx Xxxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company deem it to be in their respective
best interests to enter into an agreement providing for the Company's employment
of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, it is hereby agreed as follows:
1. Effective Date. This Agreement shall be effective as of the 4th day
of January 1999, which date shall be referred to herein as the "Effective Date."
2. Position and Duties.
(a) The Company hereby employs Executive as its Chief
Information Officer commencing as of the Effective Date for the "Term of
Employment" (as herein defined below). In this capacity, Executive shall devote
his best efforts and his full business time and attention to the performance of
the services customarily incident to such office and position and to such other
services of a senior executive nature as may be reasonably requested by the
Chairman and Chief Executive Officer of the Company, which may include services
for one or more subsidiaries or affiliates of the Company. Executive shall in
his capacity as an employee and officer of the Company be responsible to and
obey the reasonable and lawful directives of the Chief Executive Officer.
(b) Executive shall devote his full time and attention to such
duties, except for sick leave, reasonable vacations, and excused leaves of
absence as more particularly provided herein. Executive shall use his best
efforts during the Term of Employment to protect, encourage, and promote the
interests of the Company.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive during the
Term of Employment a minimum salary at the rate of one hundred fifty-five
thousand dollars ($155,000) per calendar year and agrees that such salary shall
be reviewed at least annually. Such salary shall be subject to discretionary
annual increases as determined by the Compensation Committee of the Board of
Directors. Such salary shall be payable in accordance with the Company's normal
payroll procedures. (Executive's annual salary, as set
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forth above or as it may be increased from time to time as set forth herein,
shall be referred to hereinafter as "Base Salary.") At no time during the Term
of Employment shall Executive's Base Salary be decreased from the amount of Base
Salary then in effect.
(b) Performance Bonus. In addition to the compensation
otherwise payable to Executive pursuant to this Agreement, Executive shall be
eligible to receive an annual bonus ("Bonus") pursuant to a performance bonus
plan (the "Bonus Plan"), which shall be established by the Company for
designated senior executive officers and which shall provide for bonus
compensation to be payable based upon the financial and other performance of the
Company and its senior executives. The Bonus Plan for each calendar year during
the Term of Employment shall be established at the beginning of the calendar
year. Executive shall not be entitled to any Bonus for any calendar year if he
is not employed under this Agreement on the last business day of such calendar
year.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any life,
health and long-term disability insurance programs, stock option and other
incentive compensation programs, and other fringe benefit programs made
available to senior executive employees of the Company from time to time, and
Executive shall be entitled to receive such other fringe benefits as may be
granted to him from time to time by the Company. Executive shall also be
entitled to participate in such retirement programs, including pension and
401(k) plans, as may be offered by the Company from time to time in its
discretion to other similarly situated employees of the Company.
(b) Executive shall be allowed 28 days of paid time off (PTO)
per calendar year and leaves of absence with pay on the same basis as other
senior executive employees of the Company.
(c) The Company shall reimburse Executive for reasonable
business expenses incurred in performing Executive's duties and promoting the
business of the Company, including, but not limited to, reasonable entertainment
expenses and travel and lodging expenses following presentation of documentation
in accordance with the Company's business expense reimbursement policies.
5. Term; Termination of Employment. As used herein, the phrase "Term of
Employment" shall mean the period commencing on the Effective Date and ending on
January 3; 2000; provided, however, that as of the expiration date of each of
(i) the initial Term of Employment and (ii) if applicable, any Renewal Period
(as defined below), the Term of Employment shall automatically be extended for
an additional one (1) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on the first
to occur of the following:
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(a) Termination by the Company Without Cause or By Executive
With Good Reason. Notwithstanding anything to the contrary in this Agreement,
whether express or implied, the Company may, at any time, terminate Executive's
employment for any reason other than Cause (as defined below) by giving
Executive at least 60 days' prior written notice of the effective date of
termination. In the event Executive's employment hereunder is terminated by the
Company other than for Cause or by Executive for Good Reason (as defined below),
Executive shall be entitled to receive (y) his Base Salary as he would have
received such amounts during the period commencing on the effective date of such
termination and ending on the first anniversary of such effective date of
termination (the "Salary Continuation Period"), as if Executive were still
employed hereunder during the Salary Continuation Period; and (z) if it has not
previously been paid to Executive, any Bonus to which Executive had become
entitled under the Bonus Plan prior to the effective date of such termination.
In addition, all of Executive's stock options with respect to the Company's
stock shall become immediately and fully exercisable. During the Salary
Continuation Period, Executive and his spouse and dependents shall be entitled
to continue to be covered by all group medical, health and accident insurance or
other such health care arrangements in which Executive was a participant as of
the date of such termination, at the same coverage level and on the same terms
and conditions which applied immediately prior to the date of Executive's
termination of employment, until Executive obtains alternative comparable
coverage under another group plan, which coverage does not contain any
pre-existing condition exclusions or limitations; provided, however, that if, as
the result of the termination of Executive's employment, Executive and/or his
otherwise eligible dependents or beneficiaries shall become ineligible for
benefits under any one or more of the Company's health benefit plans, the
Company shall continue to provide Executive and his eligible dependents or
beneficiaries, through other means, with benefits at a level at least equivalent
to the level of benefits for which Executive and his dependents and
beneficiaries were eligible under such plans immediately prior to the date of
Executive's termination of employment. At the termination of the health benefits
coverage under the preceding sentence, Executive and his spouse and dependents
shall be entitled to continuation coverage pursuant to Section 4980B of the
Internal Revenue Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any other
applicable law, to the extent required by such laws, as if Executive had
terminated employment with the Company on the date such benefits coverage
terminates.
For purposes of this Agreement, "Good Reason" shall mean, without the
express written consent of Executive, the occurrence of any of the following
events unless such events are fully corrected within 30 days following written
notification by Executive to the Company that he intends to terminate his
employment hereunder for one of the reasons set forth below:
(i) a material breach by the Company of any material
provision of this Agreement, including, but not limited to,
the assignment to Executive of any duties inconsistent with
Executive's position in the Company or an adverse alteration
in the nature or status of Executive's responsibilities;
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(ii) the Company's requiring the Executive to be
based anywhere other than the metropolitan area where he
currently works and resides (provided that Company and
Executive agree that Executive shall relocate to the Charlotte
metropolitan area within a mutually agreeable time frame after
the date hereof); and
(iii) the occurrence of a "Change in Control" as
defined below.
For purposes of this Agreement a "Change in Control" shall mean an
event as a result of which: (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total voting power of the voting stock of
the Company; (ii) the Company consolidates with, or merges with or into another
corporation or sells, assigns, conveys, transfers, leases or otherwise disposes
of all or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding voting stock of the Company
is changed into or exchanged for cash, securities or other property, other than
any such transaction where (A) the outstanding voting stock of the Company is
changed into or exchanged for (x) voting stock of the surviving or transferee
corporation or (y) cash, securities (whether or not including voting stock) or
other property, and (B) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less than
50% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the Company was
approved by a vote of 66-2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of the Company then in office; or (iv) the Company is
liquidated or dissolved or adopts a plan of liquidation; provided, however, that
a Change in Control shall not include any going private or leveraged buy-out
transaction which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to or in connection with such transaction (each of the events
described in (i), (ii), (iii) or (iv) above, as provided otherwise by the
preceding clause being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have the right to
terminate Executive's employment at any time for Cause by giving Executive
written notice of the effective date of termination (which effective date may,
except as otherwise provided below, be the date of such notice). If the Company
terminates Executive's employment for
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Cause, Executive shall be paid his unpaid Base Salary through the date of
termination and the amount of any unpaid Bonus to which Executive had become
entitled under the Bonus Plan prior to the effective date of such termination
and the Company shall have no further obligation hereunder from and after the
effective date of termination and the Company shall have all other rights and
remedies available under this or any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or other
act of material misconduct against the Company or any
of its subsidiaries or affiliates;
ii) substantial and willful failure to perform
specific and lawful directives of the Chief Executive
Officer or the Board of Directors, as reasonably
determined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory body,
which is materially injurious to the financial
condition of the Company; or
iv) conviction of or plea of guilty or nolo
contendere to a felony;
provided, however, that with regard to subparagraph (ii) above, Executive may
not be terminated for Cause unless and until the Company has given him
reasonable written notice of its intended actions and specifically describing
the alleged events, activities or omissions giving rise thereto and with respect
to those events, activities or omissions for which a cure is possible, a
reasonable opportunity to cure such breach; and provided further, however, that
for purposes of determining whether any such Cause is present, no act or failure
to act by Executive shall be considered "willful" if done or omitted to be done
by Executive in good faith and in the reasonable belief that such act or
omission was in the best interest of the Company and/or required by applicable
law.
(c) Termination on Account of Death. In the event of
Executive's death while in the employ of the Company, his employment hereunder
shall terminate on the date of his death and Executive shall be paid his unpaid
Base Salary through the date of termination and the amount of any unpaid Bonus
to which Executive had become entitled under the Bonus Plan prior to the
effective date of such termination. In addition, any other benefits payable on
behalf of Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in accordance with
the terms of such programs.
(d) Voluntary Termination by Executive. In the event that
Executive's employment with the Company is voluntarily terminated by Executive
other than for Good Reason, Executive shall be paid his unpaid Base Salary
through the date of termination and the
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amount of any unpaid Bonus to which Executive had become entitled under the
Bonus Plan prior to the effective date of such termination, and the Company
shall have no further obligation hereunder from and after the effective date of
termination and the Company shall have all other rights and remedies available
under this Agreement or any other agreement and at law or in equity. Executive
shall give the Company at least 60 days' advance written notice of his intention
to terminate his employment under this paragraph (d).
(e) Termination on Account of Disability. To the extent not
prohibited by The Americans With Disabilities Act of 1990 or the North Carolina
Handicapped Persons Protection Act if, as a result of Executive's incapacity due
to physical or mental illness (as determined in good faith by a physician
acceptable to the Company and Executive), Executive shall have been absent from
the full-time performance of his duties with the Company for 120 consecutive
days during any 12-month period or if a physician acceptable to the Company
advises the Company that it is likely that Executive will be unable to return to
the full-time performance of his duties for 120 consecutive days during the
succeeding 12-month period, his employment may be terminated by the Company for
"Disability." During any period that Executive fails to perform his full-time
duties with the Company as a result of incapacity due to physical or mental
illness, he shall continue to receive his Base Salary, Bonus and other benefits
provided hereunder, together with all compensation payable to him under the
Company's disability plan or program or other similar plan during such period,
until Executive's employment hereunder is terminated pursuant to this Section
5(e). Thereafter, Executive's benefits shall be determined under the Company's
retirement, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-Competition.
(a) During the Term of Employment and for two (2) years
thereafter, Executive shall not, except as may be required to perform his duties
hereunder or as required by applicable law, disclose to others or use, whether
directly or indirectly, any Confidential Information regarding the Company.
"Confidential Information" shall mean information about the Company, its
subsidiaries and affiliates, and their respective clients and customers that is
not available to the general public and that was learned by Executive in the
course of his employment by the Company, including, but not limited to, any
proprietary knowledge, trade secrets, data, formulae, information, and client,
customer and employee lists and all papers, resumes, records (including computer
records) and other documents containing such Confidential Information. Executive
acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company, and that such information gives the Company a
competitive advantage. Upon the termination of his employment for any reason
whatsoever, Executive shall promptly deliver to the Company all documents,
computer tapes and disks (and all copies thereof) containing any Confidential
Information.
(b) During the Term of Employment and for two (2) years
thereafter, Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor,
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principal, agent, partner, officer, director, shareholder, employee, member of
any association or otherwise) engage in, work for, consult, provide advice or
assistance or otherwise participate in any activity that is competitive with the
business of the Company, its subsidiaries and affiliates in providing flexible
staffing, information technology consulting or permanent placement services (the
"Business"); provided, however, that (i) the "beneficial ownership" by
Executive, either individually or as a member of a "group," as such terms are
used in Rule 13d of the General Rules and Regulations under the Exchange Act, of
not more than five percent (5%) of the voting stock of any publicly held
corporation shall not be a violation of this Agreement and (ii) Executive may
work or serve as a consultant to, or otherwise provide advice or assistance as
an agent for, any person or entity in the Business (subject to Executive's
obligations as set forth in Section 6(a) above), and such services shall also
not be a violation of this Agreement. Executive further agrees that during such
period he will not assist or encourage any other person in carrying out any
activity that would be prohibited by the foregoing provisions of this Section 6
if such activity were carried out by Executive and, in particular, Executive
agrees that he will not induce any employee of the Company, its subsidiaries and
affiliates to carry out any such activity. It is further expressly agreed that
the Company will or would suffer irreparable injury if Executive were to compete
with the Company or any subsidiary or affiliate of the Company in violation of
this Agreement and that the Company would by reason of such competition be
entitled to injunctive relief in a court of appropriate jurisdiction, and
Executive further consents and stipulates to the entry of such injunctive relief
in such a court prohibiting Executive from competing with the Company or any
subsidiary or affiliate of the Company in violation of this Agreement.
The provisions of Section 6(b) shall be limited in scope and effective
only within the following geographical areas:
i) The cities in which the Company, its subsidiaries
and affiliates are now or shall then, as of the date
of termination of Executive's employment, be
operating an office in the Business;
ii) The counties in which any of the cities set forth
in clause (i) are located;
iii) The counties set forth in clause (ii) and a
100-mile radius outside the boundary limits of each
such county;
iv) The states in which each of the cities set forth
in clause (i) are located; and
v) The United States of America.
(c) During the Term of Employment and for two (2) years
thereafter, Executive shall not, directly or indirectly, influence or attempt to
influence customers or suppliers of the Company or any of its subsidiaries or
affiliates, to divert their business to any competitor of the Company.
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(d) Executive recognizes that he will possess confidential
information about other employees of the Company relating to their education,
experience, skills, abilities, compensation and benefits, and interpersonal
relationships with customers of the Company. Executive recognizes that the
information he will possess about these other employees is not generally known,
is of substantial value to the Company in developing its business and in
securing and retaining customers, and will be acquired by him because of his
business position with the Company. Executive agrees that, during the Term of
Employment, and for a period of two (2) years thereafter, he will not, directly
or indirectly, solicit or recruit any employee of the Company for the purpose of
being employed by him or by any competitor of the Company on whose behalf he is
acting as an agent, representative or employee and that he will not convey any
such confidential information or trade secrets about other employees of the
Company to any other person.
(e) If it is determined by a court of competent jurisdiction
in any state that any restriction in this Section 6 is excessive in duration or
scope or is unreasonable or unenforceable under the laws of that state, it is
the intention of the parties that such restriction may be modified or amended by
the court to render it enforceable to the maximum extent permitted by the law of
that state. The parties intend the above restrictions on competition to be
completely severable and independent, and any invalidity or unenforceability of
any one or more of such restrictions shall not render invalid or unenforceable
anyone or more of the other restrictions.
(f) Executive acknowledges that he was informed of the time,
territory, scope and other essential requirements of the restrictions in this
Section 6 when he agreed to become employed with the Company under the terms set
forth in this Agreement, and Executive further acknowledges that he has received
sufficient and valuable consideration for his agreement to such restrictions.
7. No Offset - No Mitigation. Executive shall not be required to
mitigate damages under this Agreement by seeking other comparable employment.
The amount of any payment or benefit provided for in this Agreement, including
welfare benefits, shall not be reduced by any compensation or benefits earned by
or provided to him as the result of employment by another employer, except as
provided otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
8. Designated Beneficiary. In the event of the death of Executive while
in the employ of the Company, or at any time thereafter during which amounts
remain payable to Executive under Section 5, such payments (other than the right
to continuation of welfare benefits) shall thereafter be made to such person or
persons as Executive may specifically designate (successively or contingently)
to receive payments under this Agreement following Executive's death by filing a
written beneficiary designation with the Company during Executive's lifetime.
Such beneficiary designation shall be in such form as may be prescribed by the
Company and may be amended from time to time or may be revoked by Executive
pursuant to written instruments filed with the Company during his lifetime.
Beneficiaries
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designated by Executive may be any natural or legal person or persons, including
a fiduciary, such as a trustee or a trust or the legal representative of an
estate. Unless otherwise provided by the beneficiary designation filed by
Executive, if all of the persons so designated die before Executive, then the
amounts payable under this Agreement shall be paid to Executive's estate.
9. Taxes. All payments to be made to Executive under this Agreement
will be subject to any applicable withholding of federal, state and local income
and employment taxes.
10. Miscellaneous. This Agreement shall also be subject to the
following miscellaneous considerations:
(a) Executive and the Company each represent and warrant to
the other that he or it has the authorization, power and right to deliver,
execute, and fully perform his or its obligations under this Agreement in
accordance with its terms.
(b) Except as otherwise set forth herein and in any offer
letter previously signed by Executive and the Company, this Agreement contains a
complete statement of all the arrangements between the parties with respect to
Executive's employment by the Company; this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning Executive's
employment; and this Agreement can only be changed or modified pursuant to a
written instrument duly executed by each of the parties hereto.
(c) If any provision of this Agreement or any portion thereof
is declared invalid, illegal, or incapable of being enforced by any court of
competent jurisdiction, the remainder of such provisions and all of the
remaining provisions of this Agreement shall continue in full force and effect.
(d) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of North Carolina, without regard
to conflicts of law issues.
(e) The Company may assign this Agreement to any direct or
indirect subsidiary or parent of the Company or joint venture in which the
Company has an interest, or any successor (whether by merger, consolidation,
purchase or otherwise) to all or substantially all of the stock, assets or
business of the Company and this Agreement shall be binding upon and inure to
the benefit of such successors and assigns. Except as expressly provided herein,
Executive may not sell, transfer, assign, or pledge any of his rights or
interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in addition to
any rights Executive may otherwise have under benefit plans, agreements, or
arrangements of the Company to which he is a party or in which he is a
participant, including, but not limited to, any Company-sponsored employee
benefit plans. Provisions of this Agreement shall not in any way abrogate
Executive's rights under such other plans, agreements, or arrangements.
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(g) For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the named Executive at the address set forth below under his
signature; provided, however, that all notices to the Company shall be directed
to the attention of the Board of Directors with a copy to the Chief Executive
Officer of the Company, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
(h) Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
(i) Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times.
(j) This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in the City of Charlotte, North
Carolina in accordance with the rules of the American Arbitration Association
then in effect. The Company and Executive hereby agree that the arbitrator will
not have the authority to award punitive damages, damages for emotional distress
or any other damages that are not contractual in nature. Judgment may be entered
on the arbitrator's award in any court having jurisdiction; provided, however,
that the Company shall be entitled to seek a restraining order or injunction in
any court of competent jurisdiction to prevent any continuation of any violation
of the provisions of Section 6, and Executive consents that such restraining
order or injunction may be granted without the necessity of the Company's
posting any bond except to the extent otherwise required by applicable law. The
expense of such arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their successors
retain counsel for the purpose of enforcing, or preventing the breach of, any
provision hereof, including, but not limited to, by instituting any action or
proceeding in arbitration or a court to enforce any provision hereof or to
enjoin a breach of any provision of this Agreement, or for a declaration of such
party's rights or obligations under the Agreement, or for any other remedy,
whether in arbitration or in a court of law, then the successful party shall be
entitled to be
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reimbursed by the other party for all reasonable costs and expenses incurred
thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such successful
party shall recover judgment in any such action or proceeding, such reasonable
costs, expenses and fees may be included in and as part of such judgment. The
successful party shall be the party who is entitled to recover his costs of
suit, whether or not the suit proceeds to final judgment. If no costs are
awarded, the successful party shall be determined by the arbitrator or court, as
the case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE COMPANY
XXX XXXXXXX PERSONNEL GROUP OF AMERICA, INC.
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chief Information Officer Title: Chairman and CEO
Address:
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